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Bpo Elks 16Inc v. Robinson
January 4, 2001
Unpublished Opinion

Bpo Elks 16Inc v. Robinson

Court of Appeals of Texas, El Paso.

B.P.O. ELKS # 1630, Inc., Appellant,


Kimberly ROBINSON, Appellee.

No. 08-99-00395-CV.


Jan. 4, 2001.

Appeal from the 358th Judicial District Court of Ector, Texas (TC# D-101,097).

Before CHEW, JJ.



*1 This is an appeal from a jury verdict in a personal injury suit. We affirm the judgment of the trial court.


Appellee, Kimberly Robinson, was employed by Appellant, B.P.O. Elks # 1630 (“The Elks”) as its only employee. She was injured as the result of a food fight that took place in the kitchen of the Lodge during a wedding and reception. Around 4 p.m. on the day of the wedding, several members of the wedding party came to the Lodge to decorate and bring food. Among them were the groom and the best man, who were both members of the Lodge. Appellee proceeded to open up the Lodge and set up the bar. She gave the keys to the back door to the gentleman who was delivering the barbeque. When he returned the keys later she asked him if he locked the back door. He went back to make sure the door was locked and upon returning, he informed Appellee there was a food fight in the kitchen. She went to the kitchen and told the group of six men to stop throwing food. At that point, someone “threw a big piece of fat” at her and the food fight started all over again. The groom and the best man were among those having the food fight. They were in tuxedos and covered with juice and meat. Appellee stated that she knew the group had been drinking because she asked them to leave the Lodge earlier after they attempted to bring in a bottle of liquor. She then saw them drinking in the parking lot.

The kitchen was “filthy.” There was brisket juice and fat all over the floor and counters, and there were pieces of fat stuck to the refrigerator. After she convinced the men to stop, Appellee asked them to clean up the mess. They told her she should clean it up. When she asked again, the best man said they would clean it up. However, he said it in a joking manner and Appellee did not think the group was sorry about the mess. About ten minutes later, the men left the kitchen and Appellee went to check on it. The men only wiped off the counter tops. Appellee proceeded to mop up the juice and pick up the pieces of fat as quickly as she could because the wedding guests were arriving and she needed to tend bar.

The bar closed at 1 a.m. and Appellee spent the next two hours cleaning the bar and the reception hall and locking the doors, while the band packed their equipment. The band finally left around 3:30 a.m. and Appellee and her boyfriend went to the kitchen to get something to eat. They were sitting on the counter eating and when she finished, Appellee slid off the counter with one foot on a shelf and one foot on the floor. As she was sliding off, her feet came out from under her, she “felt a pop,” and it felt like she pulled every muscle in her body. Appellee never “hit the ground” but she felt a burning pain and her legs went numb. She noticed there was brisket fat on the counter and grease on the floor. In addition to the new tile floor that was slippery, Appellee figured she slipped on the fat and grease.

*2 The next morning, Appellee was in such horrible pain that her boyfriend called 911. An ambulance transported her to the hospital, where she was x-rayed and given shots for the muscle spasms and pain. The emergency room doctor referred her to a specialist. After numerous tests, the specialist sent her to another doctor. That doctor recommended that Appellee see the doctors at the Texas Back Institute. Appellee tried physical therapy for “a month or two” but eventually went to the doctors at the Back Institute. The doctor there informed Appellee that surgery was the only thing that would make her feel better. Appellee later had surgery in which screws, metal rods, pins, and a cadaver’s shin bone were inserted into her back.

Appellee filed suit against the Elks alleging negligence, since the Elks were non-subscribers under the workers’ compensation laws. At the close of evidence, the trial court directed a verdict on Appellee’s premises liability claim. The jury was given a general negligence charge and found the Elks 100 percent liable. Appellee was awarded $5,000 for physical pain and mental anguish in the past, $7,000 for physical impairment in the past, $18,000 for loss of earning capacity in the past, and $9,500 for reasonable expenses of necessary medical care in the past. The Elks’ Motion to Modify the Judgment or in the Alternative for a New Trial was denied.


The Elks present one issue on appeal: whether the trial court erred by submitting a premises liability case to the jury on a negligent activity charge?1 We review the court’s charge under an abuse of discretion standard. See TEX.R.CIV.P. 277. This discretion is subject to the requirement that the questions submitted must control the disposition of the case, be raised by the pleadings and evidence, and properly submit the disputed issues for the jury’s deliberation. See id.

The Elks cite one case, id. at 264. The Plaintiff appealed arguing the trial court erred in failing to submit a negligent activity charge. See id. The Supreme Court held that the case was properly submitted as a premises liability case because the Plaintiff’s theory was that Kroger exposed its customers to the unreasonable risk of a fall by negligently conducting its plant spraying activity in an area open to its customers. See id. The Court noted that there was no ongoing activity when the Plaintiff was injured and while she may have been injured by a condition created by the spraying, she was not injured by the activity of spraying. See id. The Court stated that recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity. See id.

*3 Generally, in cases involving premise defects, the jury must find that an unreasonable risk of harm existed. See Skaggs Alpha Beta, Inc. v. Nabhan, 808 S.W.2d 198, 201 (Tex.App.-El Paso 1991, no writ).

One of the acts of negligence alleged by Appellee was the failure of the Elks to provide adequate security and/or supervision for the wedding. V.R. Harry, Exalted Ruler of the Lodge, testified that they hired security personnel for “big” weddings, those with forty to fifty people in attendance, because they “figure[d] on them Mexicans getting unruly.” The wedding in this case had eighty to one-hundred people in attendance and Appellee was alone at the Lodge to serve drinks as well at totally manage the premises. Harry also testified that the Elks had no formal rules establishing when security would be required and when and how many Lodge members should be present at these events. Furthermore, the on-premises activity was the food fight started by two lodge members. According to Harry, Lodge members were at these functions “so they won’t have no fights or knock-down-drag-outs. Somebody has a party, sometimes they try to get unruly. Elks don’t but other people do.” In this case, the record is clear that Lodge members themselves were the underlying cause of the problem.

Based on the pleadings and the evidence adduced, we find that the trial judge did not err in submitting this case to the jury on a general negligence charge and directing a verdict on premises liability. Accordingly, we overrule Appellant’s issue on review.

Having overruled Appellant’s sole issue on review, we affirm the judgment of the trial court.



The charge read as follows:


Did the negligence, if any, of the persons named below proximately cause the occurrence in question?

Answer ‘Yes’ or ‘No’ for each of the following:

a. Kimberly Robinson _____

b. B.P.O. Elks # 1630, Inc. _____

If in answer to Question No. 1, you have found that the negligence of more than one of the persons named below proximately caused the occurrence, then answer the following Question. Otherwise, do not answer the following question.


What percentage of negligence that caused the occurrence do you find attributable to each of those found by you, in your answer to Question No. 1, to have been negligent?

The percentages you find must total 100 percent. The negligence attributable to a person named below is not necessarily measured by the number of acts or omissions found.

a. Kimberly Robinson _____

b. B.P.O. Elks # 1630, Inc. _____

End of Document